The Supreme Court’s verdict in the Mullaperiyar Dam case is largely a reiteration of its findings in a February 2006 judgment on the height and safety of the dam and is consistent with its earlier pronouncements. Two decades ago, the apex court struck down a Karnataka law that sought to nullify the interim award of the Cauvery Tribunal, and now, the Court has invalidated a Kerala amendment to circumvent the 2006 judgment, allowing the raising of the storage of the Mullaperiyar Dam from 136 feet to 142 feet. The dispute was between Kerala’s stand that the dam built in 1895 is not safe enough to store water above 136 feet and that there should be a new structure, and Tamil Nadu’s position that it is structurally sound and needs only strengthening, not replacement. The judicial outcome has some valuable lessons for our quasi-federal polity. First, it proves that unilateral action in inter-State matters is ill-advised. Secondly, it shows the courts are able and willing to adjudicate impartially on sensitive issues with political overtones that could inflame regional passions. Therefore, merely harping on “protecting the rights” of one’s own State to the detriment of another is not an option. The verdict sends out a message that rights crystallised by judicial orders cannot be abrogated by legislation.
States should not forget that they are successor entities to either princely rulers or the British government, and pre-Independence agreements still survive. There may be scope for revisiting these agreements in a spirit of accommodation and in tune with present-day requirements, but their antiquity or pre-Constitution status can no more be cited as a reason to deny rights flowing from such instruments. Courts have been zealous about equitable distribution of water and seldom countenance attempts at undermining equity. In the Mullaperiyar case, safety, and not appropriation of water, was the issue. The finding that the dam is safe on structural, hydrological and seismic aspects ought to be given the respect that judicial finality deserves. Regretting the rigid and inflexible stand taken by the two parties, the Court has flagged the two alternatives suggested by an Empowered Committee that can be implemented if the two States come to an agreement: a new dam, or a new tunnel at a particular elevation so that some currently unused quantum of water may be evacuated when the dam is under strain. While a new dam may not be feasible in the heart of a wildlife sanctuary, the second option could be considered at some stage in the future so that fears that seem to be widespread in Kerala are set at rest. Until then, the Court’s directives on the reservoir level should be scrupulously implemented.